Bombay High Court
Mohd. Sharique-Ur-Rehman vs State Of Maharashtra on 11 June, 2012
Author: A.P. Bhangale
Bench: B.P. Dharmadhikari, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 6131 OF 2011
AND
WRIT PETITION NO. 1674 OF 2012
WRIT PETITION NO. 6131 OF 2011
Mohd. Sharique-ur-Rehman
s/o Ata-ur-Rehman, aged
about 32 years, occupation -
Advocate, r/o Dulha Plots,
Mujawar Pura, Patur,
District - Akola. ... PETITIONER
Versus
1. State of Maharashtra,
through its Secretary,
Department of Social Welfare,
Cultural Affairs and Sports,
Mantralaya, Mumbai - 32.
2. The District Level Caste
Certificate Scrutiny Committee,
Akola, through its Member
Secretary, Akola.
3. The State Election Commission
Maharashtra, New Administrative
Building, 1st Floor, Madam Cama
Marg, Hutatma Rajguru Chowk,
Mumbai.
4. The Returning Officer,
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Patur Nagar Parishad General
Elections - 2011, Patur,
District - Akola.
5. The Nagar Parishad, Patur,
through its Chief Officer,
Patur, District - Akola.
6. The Police Station Officer,
Patur, District - Akola.
7. Syed Mujahid Iqbal s/o Syed
Mohsin, aged 33 years,
occupation - Business, r/o
Patur, District - Akola. ... RESPONDENTS
Shri Z.A. Haq with Shri R.A. Haq, Advocates for the petitioner.
Shri A.S. Fulzele, AGP for respondents No. 1, 2 & 6.
Shri Pradeep Marpakwar, Advocate for respondent No. 3.
Shri G.R. Agrawal, Advocate for respondent No. 5.
Shri M.G. Bhangde, Sr. Advocate with Shri V.V. Bhangde,
Advocate for respondent No. 7.
WRIT PETITION NO. 1674 OF 2012
Syed Mujahid Iqbal s/o Syed
Mohsin, aged about 33 years,
occupation - Business, r/o
Patur, District - Akola. ... PETITIONER
Versus
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1. The State of Maharashtra
through the Social Justice and
Special Assistance Department,
Mantralaya, Mumbai - 32.
2. The District Level Caste
Certificate Scrutiny Committee,
Akola, through its Member
Secretary, Akola.
3. The Collector, Akola,
District - Akola. ... RESPONDENTS
Shri M.G. Bhangde, Sr. Advocate with Shri V.V. Bhangde,
Advocate for the petitioner.
Shri P.D. Kothari, AGP for respondents No. 1 to 3.
Shri Z.A. Haq and R.A. Haque with Shri A.R. Sheikh, Advocates
for the caveator.
.....
CORAM : B.P. DHARMADHIKARI &
A.P. BHANGALE, JJ.
DATE OF RESERVING JUDGMENT : MAY 07, 2012.
DATE OF PRONOUNCING JUDGMENT: JUNE 11, 2012.
JUDGMENT :(Per A.P. BHANGALE, J.) Both these matters are between same parties and on same subject. In fact, Writ Petition No. 1674 of 2012 arises allegedly because of cognizance taken of Writ Petition No. 6131 ::: Downloaded on - 09/06/2013 18:39:34 ::: wp6131.11 4 of 2011. Petitioner Mohd. Sharique-ur-Rehman in Writ Petition No. 6131 of 2011 attempts to demonstrate that Respondent No. 7 - Syed Mujahid Iqbal, petitioner in later petition, has procured a forged caste certificate and got it validated hastily without police vigilance inquiry. He, therefore, seeks to unseat Respondent No. 7 as elected councillor of Patur Municipal Council. Writ Petition 1674 of 2012 questions a show cause notice issued to petitioner Syed Mujahid Iqbal Mujahid Iqbal therein with orders passed on preliminary objections raised therein on various grounds. Looking to the nature of controversy and various orders passed, we have heard both the matters finally at the stage of admission by issuing Rule and making it returnable forthwith. We have referred to both rival Petitioners by their names to avoid any confusion.
2. Petitioner Mohd. Sharique-ur-Rehman in Writ Petition No. 6131 of 2011 has prayed for quashing and setting aside of order dated 19.11.2011 passed by the Respondent No. 2 Scrutiny Committee validating caste claim of Respondent No.7 ::: Downloaded on - 09/06/2013 18:39:34 ::: wp6131.11 5 Syed Mujahid Iqbal and for quashing consequential caste validity given to that Respondent. The Petition also contained an interim prayer to restrain Syed Mujahid Iqbal from contesting the general election of Respondent No.5 Municipal Council then due on 11.12.2011 by staying the impugned order. However, due to passage of time interim prayer is rendered infructuous. After filing this writ petition, Mohd. Sharique ur Rehman has filed election petition No.5/2011 on 19.12.2011 before the District Judge, Akola under Section 21 of the Maharashtra Municipalities, Nagar Panchayats & Industrial Townships Act,1965, (Municipalities Act hereafter). Writ petition was first considered by this Court on 21.12.2011 when it issued notices and also directed record proceedings of Respondent Nos.2 & 6 to be made available for Court's perusal. Perusal of order dated 14.3.2012 passed by this Court shows leave given to Mohd.
Sharique ur Rehman to place impugned caste validity order on record. Time was also given to him to point out whether he has requisite validity. In rejoinder dated 14.3.2012, Mohd. Sharique ur Rehman pointed out that his caste claim was validated by ::: Downloaded on - 09/06/2013 18:39:34 ::: wp6131.11 6 Scrutiny Committee on 15.2.2007. Next order dated 22.3.2012 notes issuance of the show cause notice to Syed Mujahid Iqbal by Respondent No.2 on 21.3.2012 and this Court then adjourned the hearing by 4 weeks with direction to Respondent No.2 to take appropriate action within said time. Mohd. Sharique ur Rehman in his petition attempts to show collusion between Syed Mujahid Iqbal and Scrutiny Committee as according to him validity has been issued to Syed Mujahid Iqbal without following mandatory procedure and without conducting any inquiry.
3. Writ Petition No.1674 of 2012 is filed by Syed Mujahid Iqbal who happens to be Respondent No.7 in Mohd.
Sharique ur Rehman's Writ Petition No. No.6131 of 2011. He has questioned decision of Scrutiny Committee to issue show cause notice dated 21.3.2012 as arbitrary and biased. There is no material with Scrutiny Committee to sustain it and only because of undue apprehension of C.I.D. Inquiry communicated to it vide letter dated 16.3.2012 by office of the Government Pleader, out of sheer fear and to show some action, impugned show cause ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 7 came to be issued. It is contended that the Scrutiny Committee is biased and acting highhandedly, thereby refusing to exercise jurisdiction and denying to Syed Mujahid Iqbal, a free and fair trial. In this matter, notice came to be issued on 11.4.2012 with direction to parties to maintain status quo. Said notice was made returnable on 19.4.2012 as Writ Petition No. 6131 /2011 was already placed on that day. Mohd. Sharique ur Rehman who has filed Writ Petition No. 6131/2011 is not party in Writ Petition No. 1674/2012 and hence, he has filed Caw No.1066 of 2012 seeking leave to intervene in it. It was also opposed on behalf of Syed Mujahid Iqbal on 11.4.2012.
4. However, Advocate Haq as also Senior Advocate M.G. Bhangde while arguing both the petitions, did not touch this CAW No.1066/2012 at all though Syed Mujahid Iqbal has attempted to show absence of locus in Mohd. Sharique ur Rehman to challenge validity given to him by Scrutiny Committee. But, looking to the judgment being delivered below, we do not find it necessary to pass separate orders on it.
::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 85. We have heard Advocate Z.A. Haq for Mohd.
Sharique ur Rehman, Senior Advocate M.G. Bhangde with Advocate R.M. Bhangde for Syed Mujahid Iqbal, AGP S/Shri Fulzele and Thakre, for the State, Scrutiny Cmmittee and Returning Officer in both matters.
6. Advocate Haq contends that validity given to caste claim of Syed Mujahid Iqbal as belonging to caste Mujawar (recognized as OBC in Maharashtra) is unsustainable as Scrutiny Committee has not recorded any reasons for granting it and it also violated norms laid down by Hon'ble Apex Court in Kumari Madhuri Patil and anr. vs. Additional Commissioner, Tribal Development and others, AIR 1995 SC 94 as also of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Classes Categories (Regulation of Issuance and Verification) of Caste Certificates Act, 2001 (Maharashtra Act No. XXIII of 2001 came into force with effect from October 18, 2001) and of 2003 Rules framed thereunder. He relied upon ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 9 the Division Bench judgment reported at 1988(3) BCR 489--
Maharashtra Adivasi Thakur Jamat Seva Mandal vs. State of Maharashtra to press the necessity of recording reasons and consequences of its absence. Section 7(2) of 2001 Act i.e. Maharashtra Act No. XXIII of 2001 confers finality upon adjudication by the Scrutiny Committee and the challenge thereto is available only under Article 226. On locus, he states that Mohd. Sharique ur Rehman was the only other candidate at election and was/is bound to be declared elected unopposed as Syed Mujahid Iqbal is not belonging to Mujawar caste and his claim can not be validated. He draws support from 2011(2) All MR 362 - Vishwanath Pandurang Mahadeshwar vs. Caste Certificate Verification Committee for this proposition. Though this can not be treated as public interest litigation, it ought to be viewed as public law litigation as held in (2008) 9 SCC 54 -
2008 AIR SCW 6184 Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar. He also points out orders dated 22.3.2012 passed by this court in Writ Petition No. 6131 of 2011 directing the Scrutiny Committee to take appropriate action within 4 weeks in ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 10 furtherance of show cause notice dated 21.3.2012 served by it on Syed Mujahid Iqbal. He submits that due to collusion between Scrutiny Committee and Syed Mujahid Iqbal, no action has been taken till date. This Court has only mentioned show cause notice in its order dated 22.3.2012 and Syed Mujahid Iqbal has appeared before the Scrutiny Committee and acquiesced in cognizance taken. He can not therefore plead absence of jurisdiction or attempt to frustrate that cognizance.
7. Advocate Haq also invites attention to orders dated 21.12.2011 asking the production of relevant documents. He also requests the Court to go through those documents as the interpolation is alleged to be apparent even to naked eye. Syed Mujahid Iqbal obtained certified copies of these interpolated documents and as Scrutiny Committee did not call for original records or conducted no inquiry, the fabrication went un-noticed and blindly validity came to be granted. After complaint by Mohd. Sharique ur Rehman, original records have been verified and criminal offence has been registered. After this Court looked ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 11 into the original and asked about C.I.D. Inquiry, office of Government Pleader rightly informed said developments to office of the Scrutiny Committee and it is a privileged communication between client and advocate. This communication does not require the Scrutiny Committee to deviate from law and hence, charge of bias against it is misconceived. He makes it clear that Mohd. Sharique ur Rehman has no objection if exercise of verification of Syed Mujahid Iqbal's caste claim is entrusted to Committee in any other district.
8. Coming to Writ Petition No. 1674 of 2012. Advocate Haq submits that show cause notice to Syed Mujahid Iqbal (petitioner therein) is due to complaint dated 30.11. 2011 lodged by Saiyad Ilias Saiyad Usman, report of Tahasildar, Patur upon it and the FIR 130/2011 registered against Syed Mujahid Iqbal on 01.12.2011 on complaint of Naib Tahasildar, Patur. As validity can not be granted without ascertaining correctness of facts, holding of inquiry and application of mind by Scrutiny Committee is essential even for said purpose and hence, ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 12 recording of reasons is must. Language employed in Rule 12(2) & 12(9)(a) of the 2003 Rules framed under 2001 Act and words "not satisfied" and "satisfied" are pressed into service. This Court in 2009 (2) All MR 869 - Devendra Gurunath Khedgikar vs. The Scheduled Tribe Certificate Scrutiny Committee recognizes power and jurisdiction of Scrutiny Committee to look into such grievances and hence, this Court must permit it to proceed further. (1999) 4 SCC 526 = AIR 1999 SC 1723- K. Venkatachalam v. A. Swamickan, is cited to urge that bar to Courts jurisdiction in Artical329(b) of Constitution of India, does not apply when a disqualified person gets elected and sits and votes in the House. He points out that Article 329(b) which bars interference of Court in electoral matters does not come into play when case falls under Articles 191 and 193 which provide for disqualification of membership and penalty for sitting and voting when disqualified, respectively and whole of election process is over. High Court can exercise jurisdiction under Artical 226 and declare that election was illegal inasmuch as elector did not possess basic constitutional and statutory qualifications. Section ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 13 7(2) of 2001 Act prohibits scrutiny of validity in election petition and hence, the validity granted needs to be questioned before this Court or then before the Scrutiny Committee itself. Election petition has been filed after Writ Petition No. No.6131 of 2011 and in writ petition, there is no prayer to set aside the election.
Undertaking of Mohd. Sharique ur Rehman as contained in paragraph 4 & 5 of rejoinder stamp number 2731 of 2012 is read out to show that in elction petition, there is no challenge to decision of Respondent 2 Committee granting validity to Syed Mujahid Iqbal. That challenge is being pressed only in Writ Petition No. 6131/2011. How filing of such election petition should be viewed qua this writ petition, he relies upon S.J.S. Enterprises (P) Ltd. vs. State of Bihar - (2004) 7 SCC 166= AIR 2004 SC 2421 and judgment of this Court reported at 2011(5) LJS 197-- Ghanshyam s/o late Gopaldas Mohota vs. The Corporation of City of Nagpur & another.
Advocate Haq concludes by submitting that if Writ Petition No. No.6131 of 2011 is allowed, Writ Petition No. No.1674 of 2012 is rendered infructous as Scrutiny Committee can then examine the ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 14 caste claim of Syed Mujahid Iqbal again.
9. AGP Advocate Fulzele for Respondents 1 to 3 in Writ Petition No. 1674 of 2012 adopts the same line of arguments as that of Advocate Haq and submits that reply filed in Writ Petition No. 6131 of 2011 may be considered here. The Scrutiny Committee has agreed to fresh consideration of caste claim of Syed Mujahid Iqbal, if matter is remanded to it by the High Court. He also points out that application dated 31.03.2012 about which much ado is being made by Syed Mujahid Iqbal, was not addressed to Collector at all. Order by Scrutiny Committee dated 04.04.2012 is on additional points and preliminary objections raised by Syed Mujahid Iqbal have been kept open and will be duly considered.
AGP Advocate Thakre for Respondents No.1, 2, 4 & 6 canvasses same points.
10. Senior Advocate Bhangde has in Writ Petition No. No.6131 of 2011 contended that Petitioner Mohd. Sharique ur ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 15 Rehman therein lacks locus to maintain it as no "injury" is caused to him, if validity granted is not used by Respondent No.7 Syed Mujahid Iqbal. Thus grant of validity itself does not give rise to any cause of action and petition does not contain necessary pleadings in this connection. Judgment of Hon'ble Apex Court reported at 2012 (3) SCALE 303-- Ravi Yashwant Bhoir vs. District Clooector, Raigad & ors., para 44, is relied upon by him to submit that even a complainant in such matter can not claim status of adversarial litigant. Vishwanath Pandurang Mahadeshwar vs. Caste Certificate Verification Committee and Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (supra) relied upon by Advocate Haq are attempted to be distinguished by urging that Mohd. Sharique ur Rehman has participated in election as also in Election Petition and Hon'ble Apex Court was required to lay down law under Artical 142 of the Constitution of India. The Court of law can invalidate an order only if right remedy is sought by right person and Mohd. Sharique ur Rehman is not right person and remedy of writ petition is not the right remedy. Only in Election Petition filed under Section 21 of ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 16 Municipalities Act. Mohd. Sharique ur Rehman can be right person invoking right remedy as it is use of caste validity for election by Syed Mujahid Iqbal which has given "cause" and "injured" him. He draws support from (2004) 1 SCC 287 = AIR 2003 SC 3789 Rafique Bibi v. Sayed Waliuddin. Mohd. Sharique ur Rehman has already availed the only or exclusive remedy and his Writ Petition No. No.6131 of 2011 is not tenable. To show that this Court is not approached with clean hands and bonafide, learned Counsel points out that Mohd. Sharique ur Rehman filed his Writ Petition on 4.12.2011 but did not get it circulated or listed till after the elections. He filed election petition on 19.12.2011 and its filing was not disclosed. Bar under Artical 243ZG of the Constitution is heavily relied upon with judgment of Hon'ble Apex Court in (2009) 7 SCC 387 = AIR 2009 SC 2475
- Kurapati Maria Das v. M/s. Dr. Ambedkar Seva Samajan. He demands dismissal of Writ Petition No. 6131 of 2011 on these grounds. (1995) 1 SCC 642 =1995 AIR SCW 808 Bombay Metropolitan Region Development Authority v. Gokak Patel Volkart Ltd. is also cited to buttress it.
::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 1711. Prayer clause (I) in Writ Petition No. 6131 of 2011 has the effect of upsetting the election of Respondent No.7 Syed Mujahid Iqbal and it is this effect which is decisive in such a challenge to determine the forum. To explain how it has been applied, learned senior advocate relies upon AIR 2005 SC 226 Shyam Sunder Sarma v. Pannalal Jaiswal", Ratansingh v.
Vijayasingh and ors. [(2001) 1 SCC 469] and decision in Essar Constructions vs. N.P. Rama Krishna Reddy [(2000) 6 SCC 94].
Thus, election petition under Section 21 of Municipalities Act is the only remedy to Mohd. Sharique ur Rehman and as it is already invoked, present writ petition deserves dismissal.
12. Learned Senior Advocate points out that neither Section 7(2) nor Section 15 of 2001 Act takes away jurisdiction of Civil Court under Section 9 of C.P.C. According to him, in scheme of 2001 Act, no order is contemplated or recording of reasons is envisaged when the Scrutiny Committee decides to grant validity to the claimant. Rules framed and particularly Rule 12 is in consonance with this scheme. Due to this and ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 18 settled principles of interpretation, words imposing obligation to pass an order or to record reasons in such a situation can not be read into 2001 Act. Support is taken from (2010) 11 SCC 593=2010 AIR SCW 2241 - Supreme Paper Mills Ltd. v. Asstt.
Commr., Commercial Taxes, Calcutta . Words "notwithstanding" in Artical 243 ZG override Artical 226 of the Constitution as also Section 7(2) of 2001 Act and District Court in election petition can examine validity granted and there is no bar to it. Assistance is taken from Constitution Bench judgment of Hon'ble Apex Court in AIR 1966 SC 1738 - State of Kerala v. M/s. N. Ramaswami Iyer and Sons. Discarding of such caste certificate by Election Court in Election Petition has been upheld by Hon'ble Apex Court in (2006) 1 SCC 212 = AIR 2006 SC 543 Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju.
13. He submits that pleadings in paragraph 2 of petition and alleged impugned order are efforts to mislead and Mohd.
Sharique ur Rehman has not filed any order or impugned order.
It is pointed out that validity is given to Syed Mujahid Iqbal ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 19 without vigilance cell report and Mohd. Sharique ur Rehman has also been given validity without it. Petitioner Mohd. Sharique ur Rehman has to produce documentary proof as sought by Respondent No.7 Syed Mujahid Iqbal in his reply filed vide stamp 2675 of 2012 in paragraph 7. In his Election Petition, Mohd. Sharique ur Rehman had sought declaration that he is elected in place of Syed Mujahid Iqbal. However, as challenge to caste validity in Election Petition is (attempted to be) being given up, Syed Mujahid Iqbal is declined opportunity to raise challenge to his caste validity.
14. To urge that opportunity to Syed Mujahid Iqbal by Scrutiny Committee during show cause proceedings will be an empty formality, Reply affidavit of Respondent No.6 - Police containing assertions of interpolation is pointed out. Advocate Bhangde argues that these assertions based upon alleged material collected behind the back of Syed Mujahid Iqbal can not be used. Its unilateral acceptance by Respondent No.2 Committee and its mind-set reflected through reply affidavit ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 20 renders opportunity to Syed Mujahid Iqbal meaningless. Said reply is also relied upon to show that Scrutiny Committee has justified grant of validity without police vigilance cell report.
Judgment of this Court at 2009 (2) Mh.L.J. 90 - Mahesh Pralhadrao Lad vs. State of Maharashtra is also cited to support it.
15. Taking up Writ Petition No. 1674 of 2012, learned Senior Advocate contends that show cause notice assailed therein should be quashed as it is stand on affidavit of Scrutiny Committee that it is already approved by this Court. Reply filed therein is also read out to show that it is sworn by Member Secretary of Respondent No.2 Scrutiny Committee and it discloses conclusions already reached. The bias in the matter is also attempted to be demonstrated by pointing out highhanded and arbitrary use of power, events between 29.03.2012 till 04.04.2012 and its non-denial by Scrutiny Committee. The remarks about judicial functioning are alleged to be an insult to the system. Show cause notice is based only upon letter dated ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 21 16.03.2012 sent by office of Government Pleader. The threat of possible C.I.D. Inquiry coerced the Scrutiny Committee to initiate action and, if said letter is ignored, there is no material to support the initiation. This pressure has affected its working and preliminary objections raised by petitioner Syed Mujahid Iqbal in Writ Petition No. 1674 of 2012 before the Scrutiny Committee are not even dealt with. Interim orders dated 31.01.2012 in Writ Petition No. 853 of 2012 at Bombay which empower the returning officer to inquire into validity of caste claim and subsequent order passed by Hon'ble Apex Court staying it are ignored by the Committee. Thus vigilance cell report is not always must and it is for Scrutiny Committee to evaluate facts and documents before it to find out its need. This evaluation is its satisfaction or otherwise on documents presented with Caste claim and need not be in writing or with appropriate reasons to support it.
16. Hon'ble Apex Court in its later judgment in Kurapati Maria Das v. M/s. Dr. Ambedkar Seva Samajan limits K. ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 22 Venkatachalam v. A. Swamickan (both supra). S.J.S. Enterprises (P) Ltd. v. State of Bihar (supra) and judgment of this Court reported Ghanshyam s/o late Gopaldas Mohota vs. The Corporation of City of Nagpur & anr. (supra), on undertaking are attempted to be distinguished by urging that in facts before the Hon'ble Apex Court, suit was actually withdrawn. Moreover, there the issue was about alternate remedy while here election petition is the exclusive remedy which Mohd. Sharique ur Rehman is still pursuing. Advocate Bhangde submits that perusal of Caste claim records of Syed Mujahid Iqbal by this Court is not essential in these writ petitions as question of interpolation needs to be answered by the election tribunal after fair impartial trial. He concludes by urging that Advocate Haq or AGPs have not answered the arguments on locus, effect-test, no requirement of order, about conduct of Mohd. Sharique ur Rehman or then precedents used by Syed Mujahid Iqbal.
17. Advocate Haq in reply points out that Writ Petition No. 853 of 2012 and several other petitions have been finally ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 23 decided at Bombay on 04.05.2012 and very constitution of Scrutiny Committees like Respondent No.2 all over Maharashtra vide resolution dated 30.07.2011 is quashed. Though not pleaded, he submits that Respondent No.2 in Writ Petition No. 6131 of 2011 is product of that resolution only. Learned AGP also accepts it. Though the Division Bench at Bombay has stayed its verdict for 10 weeks, the issue stands concluded. AIR 2003 SC 4355 Punit Rai v. Dinesh Chaudhary is relied to contend that a person in fact not belonging to Scheduled Caste/Tribe, if claims himself to be a member thereof by procuring a bogus caste certificate, he is committing fraud on Constitution and no Court of law can encourage commission of such fraud.
18. In his reply, Advocate Bhangde submits that order dated 22.03.2012 passed by this Court in Writ Petition No. 6131 of 2011 does not foreclose the defences available to Syed Mujahid Iqbal, and by participation in show cause proceedings ,he does not waive any of his legal rights. Reliance is upon (1978) 1 SCC 490 = AIR 1978 SC 476 - Maharashtra State ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 24 Textile Corporation Ltd. v. Official Liquidator. On letter dated 16.03.2012 sent by office of Government Pleader to Respondent 2, authority at 1977 Mh. L.J. 508 - Adarsha Toddy Kamgar vs. State of Maharashtra is cited. Time was sought to assist this Court about Bombay judgment dated 04.05.2012 as its copy was not made available by other side. On 07.05.2012, learned senior advocate submitted that as Bombay bench has stayed its judgment for 10 weeks, this Court should also adjourn the matter for same period. He expressed difficulty in commenting on its merit before the co-ordinate bench. He also points out that in paragraph 36 though the Bombay bench made reference to "wide ramifications", ultimately the aspect is not considered.
19. Division Bench of this Court at Bombay in its judgment dated 04.05.2012 has found composition of Scrutiny Committee as per government resolution dated 30.07.2011 bad.
Syed Mujahid Iqbal has in his Writ Petition No. 1674 of 2012 accepted that Scrutiny Committee which issued validity in his favour, is constitued by government resolution dated 30.07.2010 ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 25 and he has produced that resolution as one of its annextures Consequentially, composition of Scrutiny Committee which issued validity in favour of Syed Mujahid Iqbal on 19.11.2011 is also declared bad. But then that bench has stayed its order for a period of ten weeks Before us, there is no challenge to said composition and some other procedural defects have been urged.
We, therefore, reject request of senior advocate to adjourn these petitions for ten weeks to await further orders of Hon'ble Apex Court.
20. Arguments on impermissibility to intervene in such disputes under Artical 226 of the Constitution spring from remedy of election petition under Section 21 of the Municipalities Act and power with election court ie the District Court to consider challenge to validity certificate issued by the Scrutiny Committee. In Writ Petition No. 6131/2011, Mohd.
Sharique ur Rehman challenges validity given to Syed Mujahid Iqbal and he has not prayed for any declaration touching the election. In election petition, his prayer is to set aside the ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 26 election of Syed Mujahid Iqbal and to declare himself as elected in his place. In rejoinder dated 14.3.2012 filed herein, he has undertaken not to assail the order of Scrutiny Committee granting validity to Syed Mujahid Iqbal in election petition.
Efficacy or adequacy in law thereof is being considered little later. Thus, if said undertaking is acted upon, the scope of both proceedings becomes different. This argument itself also accepts that as validity received by Syed Mujahid Iqbal is used by him against Mohd. Sharique ur Rehman to contest election as a Councillor, Mohd. Sharique ur Rehman has locus to maintain an election petition under Section 21 of Municipalities Act and in it, he can also question that validity. Syed Mujahid Iqbal can not therefore be heard saying that there is no injury caused to Mohd.
Sharique ur Rehman Only dispute is about right forum to redress it. Before the Hon'ble Apex Court in Ravi Yashwant Bhoir vs. District Clooector, Raigad & ors, (supra), challenge was to judgment of High Court upholding order of Chief Minister declaring that conduct of appellant Ravi Bhoir was unbecoming of President of a municipal council and disqualifying him.
::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 27Consideration by Hon'ble Apex Court in paragraphs No.41 & 42 show the non-application of mind by Hon'ble Chief Minister and cryptic nature of his order. It is found inadequate to support such serious penalty and High Court is also held in error as it did not consider the grievance of appellant and did not record reasons while upholding such order of a statutory authority.
Hon'ble Apex Court got itself satisfied about the malice and in that background, observations on locus in paragraph 44 need to be understood. It has been held that complainant could not have been a party to such "lis" and none of his legal rights were violated. He could not establish that he has been deprived of or denied of a legal right and sustained injury to any legally protected interest. He therefore could not establish that he was aggrieved person. This reasoning is not relevant in present facts where the validity as to caste certificate are used by Syed Mujahid Iqbal to the prejudice of Mohd. Sharique ur Rehman We do not find any substance in objection to locus of Petitioner Mohd. Sharique ur Rehman by Respondent No.7 Syed Mujahid Iqbal. Division Bench of this Court in Vishwanath Pandurang ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 28 Mahadeshwar vs. Caste Certificate Verification Committee (supra) also finds locus in a rival in election. Hon Apex Court in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (supra) has answered question "Whether a co-employee of the respondent No. 1 who was working as a Field Officer with the Maharashtra Pollution Control Board can maintain an independent special leave questioning the judgment of a High Court setting aside an order of the Scheduled Tribe Caste Certificate Scrutiny Committee is the question involved herein." in affirmative in para 31 because of grave importance of issue involved and its duty as Apex Court to lay down law correctly for future.
21. In Dayaram v. Sudhir Batham - (2012) 1 SCC 333--
2011= AIR SCW 6781, while upholding bar on approaching the Civil Court, Hon'ble Larger Bench of the Apex Court observed that thus if a suit is to be filed in a civil court in regard to the decision of the Scrutiny Committee, the cause of action for such suit would not arise under any statute, but with reference to an order of a Committee constituted in pursuance of a scheme ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 29 formulated by it, by way of a stop-gap quasi-legislative action.
The principle underlying Section 9 CPC is that cognizance of any category of suits arising under a statute, can be barred (either expressly or impliedly) by that Statute. It also repelled the contention that in absence of any judicial member or "judicial mind", challenge to order of such committee under Artical 226 can not be an efficacious substitute for a civil suit and observed :-- " The Scrutiny Committee is not an adjudicating authority like a Court or Tribunal, but an administrative body which verifies the facts, investigates into a specific claim (of caste status) and ascertains whether the caste/tribal status claimed is correct or not. Like any other decisions of administrative authorities, the orders of the Scrutiny Committee are also open to challenge in proceedings under Article 226 of the Constitution.
Permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this court wanted to eradicate." Thus, it has considered the situation prevailing in State of Madhya Pradesh where stop-gap quasi-legislative arrangement in Ku. Madhuri ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 30 Patil is prevailing and there is no state law like 2001 Act ie Maharashtra Act 23 of 2001. It then considers question no. (iii) and the fact that State of Madhya Pradesh has enacted the 'Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005"
which is deemed to have come into force from 1.7.1981. The said State Law provides a right of appeal before a Division Bench against the judgment of the single Judge exercising jurisdiction under Article 226 of the Constitution of India. The Hon'ble Larger Bench, when it noticed said vested right and a statutory intra-court appeal, overrules second sentence in direction no. 13 in Ku. Madhuri Patil and recognizes/restores such an intra-court appeal. In Maharashtra, the stop gap quasi-legislation is not in force after 2001 Act and Full Bench of this Court 2009(3) Mah.L.J. 995 - Shilpa Vishnu Thakur Vs. State of Maharashtra through its Secretary, Tribal Development Department & ors., has already held Scrutiny Committees functioning thereunder to be quasi-judicial authority. In reply affidavit, Scrutiny Committee in paragraph 5 has also asserted accordingly. Thus, only later part of judgment of Hon'ble Larger bench of Apex Court overruling ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 31 direction No. 13 due to vested right of intra-court appeal is relevant here as it gives primacy to State enactment over quasi-
legislation.
22. In Kurapati Maria Das v. M/s. Dr. Ambedkar Seva Samajan (supra), Hon'ble Apex Court considers a prayer for writ of quo warranto and in paragraph 24 notices that such writ could have been issued only after invalidation of caste claim of appellant before it firstly, as a councillor and secondly, as a chairman. Two prayers in writ petition - i.e. "(b) directing the 9th respondent to vacate the offices of the Chairperson and the Councilor of the Bapatla Municipal Council, Guntur District (representing Ward No.8), or, (c) removing the 9th respondent from the office of the Chairperson and from the office of the Councilor of the Bapatla Municipal Council, Guntur District (representing Ward No. 8)" are found to indicate that real challenge was to election. Following observations of Hon'ble Apex Court clinch the point :--"Therefore, though apparently it is suggested in the writ petition was only for the writ of quo ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 32 warranto, what is prayed for is the setting aside of the election of the appellant herein on the ground that he did not belong to the Scheduled Caste. It is further clear from the writ petition that the writ-petitioners were themselves aware of the situation that the writ of quo-warranto could have been prayed for only on invalidation or quashing of the election of the appellant, firstly as a Councillor and secondly, as a Chairman and that was possible only by an Election Petition. The two decisions quoted above, in our opinion, are sufficient to hold that a writ petition of the nature was not tenable though apparently the writ petition has been couched in a safe language and it has been represented as if it is for the purpose of a writ of quo warranto." Here, before this Court, Mohd. Sharique ur Rehman has never made any such prayers and by furnishing an undertaking in rejoinder, he has made it clear that in present Writ Petition No.6131 of 2011 only challenge is to decision of Scrutiny Committee to grant caste validity to Syed Mujahid Iqbal and that challenge is not involved in election petition. In election petition, Mohd. Sharique ur Rehman has also sought declaration that he stands elected in place of ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 33 Syed Mujahid Iqbal. Thus, per se, it can not be said that purpose of writ petition is to remove Syed Mujahid Iqbal. Therefore the effort is to rely on effect test and those arguments of Advocate Bhangde on "effect test" are being considered later on. Hon'ble Apex Court in its earlier judgment in K. Venkatachalam v. A. Swamickan" (supra) in para 27 observed :-- "Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?" Thus, the bar is not absolute and in suitable circumstances, the recourse to powers under Artical 226 ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 34 may be possible. This law is not shaken in any way by this later judgment. In present facts also, election is already over and complaint is about use of bogus documents by successful candidate for procuring caste certificate and validity. Also, we are not required to interfere directly with the election as that relief is sought only in election petition. Section 17 of the 2001 Act is very significant and it states that the provisions of 2001 Act are in addition to provisions of any other law for the time being in force. In other words, 2001 Act of Maharashtra is not derogatory of any other law.
23. Next question to be examined is whether in election petition filed by Mohd. Sharique ur Rehman, the District Court can determine whether validity given to Syed Mujahid Iqbal is proper or not. In paragraph 27 in Kurapati Maria Das v. M/s. Dr. Ambedkar Seva Samajan (supra), Hon'ble Apex Court considers its earlier judgment in K. Venkatachalam v. A. Swamickan (supra) and distinguished it as no disputed questions of facts were involved. Hon'ble Court observes :-- "27. We are afraid, we are ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 35 not in position to agree with the contention that the case of K. Venkatachalam v. A Swamickan and Anr. [1999 (4) SCC 526] is applicable to the present situation. Here the appellant had very specifically asserted in his counter affidavit that he did not belong to the Christian religion and that he further asserted that he was a person belonging to the Scheduled Caste. Therefore, the Caste status of the appellant was a disputed question of fact depending upon the evidence. Such was not the case in K. Venkatachalam v. A Swamickan and Anr. [1999 (4) SCC 526]. Every case is an authority for what is actually decided in that. We do not find any general proposition that even where there is a specific remedy of filing an Election Petition and even when there is a disputed question of fact regarding the caste of a person who has been elected from the reserved constituency still remedy of writ petition under Article 226 would be available." Scheme of A.P. Scheduled Castes Scheduled Tribes and Backward Classes Regulation of Issue of Community Certificate Act (16 of 1993) is considered in Kurapati Maria Das v. M/s. Dr. Ambedkar Seva Samajan (supra) and it is not pointed out to us But then it is apparent that section ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 36 5 there did provide a mechanism to cancel the certificate and to redress grievance against it. Consideration of Hon'ble Apex Court in para 35 to 39 reveal that respondent ought to have obtained a direction for expeditious disposal of his complaint under Section 5 for its cancellation and in the wake of this remedy, High Court ought not to have embarked upon an inquiry to decide disputed facts. It was not necessary to consider statutory bar,if any, in A.P. Act on determination of said issue by any other Court or Authority . The Hon'ble Apex Court has relied upon Article 243ZG and relevant election rules, but, has not held that such dispute could have been gone into only in election petition, as it was affecting the election. Findings recorded by it show that grievance can be looked into under Section 5 of A.P. Act, 1993.
We are therefore not in position to deduce from this judgment that remedy to Mohd. Sharique ur Rehman prescribed by Section 7(1) of 2001 Act is eclipsed by Artical 243ZG. Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju (supra) being considered little later also shows some difference in scheme of A.P. Act and 2001 Act of Maharashtra.
::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 3724. Hon'ble Apex Court in AIR 2007 SC 295 - State of Maharashtra v. Ravi Prakash Babulalsing Parmar has laid down that the Caste Scrutiny Committee is a quasi judicial body set up for a specific purpose. It serves social and constitutional purposes. It is constituted to prevent fraud on Constitution and may not be bound by the provisions of Indian Evidence Act.
Hon'ble Apex Court further holds that it would not be correct for the superior Courts to issue directions as to how it should appreciate evidence. Evidence to be adduced in a matter before a quasi judicial body cannot be restricted to admission of documentary evidence only and it may of necessity have to take oral evidence. It seems that Scrutiny Committees under 2001 Act are the quasi-judicial exclusive forums for resolving any disputed caste claim. Full Bench in (2009) 3 Mh.L.J. 995 - Shilpa Vishnu Thakur Vs. State of Maharashtra through its Secretary, Tribal Development Department & ors . has followed this judgment and stated that as quasi-judicial authorities, Competent Authority and the Scrutiny Committee are duty bound to investigate into all aspects of a claim by appreciating documentary material ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 38 information and evidence which encompasses an enquiry into whether a candidate has established affinity with a scheduled tribe. Scrutiny Committee must have regard to the entire body of evidence including on the question as to whether the applicant has satisfied the affinity test. Quasi-judicial function must focus on all relevant aspects such as whether the absence of documentary evidence is due to poverty, illiteracy and isolation or whether it is a plea in the nature of suppression to prevent the real status of the applicant from emerging before the authority.
Competent Authority and the Scrutiny Committee have powers of a Civil Court while trying a suit under the Code of Civil Procedure particularly in summoning and enforcing the attendance of persons; requiring the discovery and production of documents; receiving evidence on affidavit, requisitioning any public record and issuing commissions for the examination of witnesses or for the production of documents. The process of verification of caste claims which came to be governed by the Judgment of the Supreme Court in Kumari Madhuri Patil (supra) involved an inquiry not merely into the documentary materials ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 39 on the basis of which the caste claim is founded but equally a verification of the claim with reference to the affinity of the candidate with a designated Scheduled Tribe. The inquiry would comprehend within its purview anthropological and ethnological traits The Committee would be entitled to inquire into the question as to whether the applicant has established an affinity with the tribe. The yardstick for determining such affinity includes the rituals of the tribe and its customs, worship, ceremonies associated with birth, marriage and death and the conventions followed for the disposal of dead bodies, Full Bench has explained that the object of the 2001 Act is to ensure that only genuine persons obtain the benefit of reservations and that false and fraudulent claims are excluded. To confine an inquiry only to the verification of documentary material would defeat the very object and purpose of the inquiry. Judicial notice has been taken by Full Bench of the fact that documents can lie.
Mere production by a person of a document reflecting his own surname as that of a community for which reservation has been made, may not necessarily establish that he belongs to that ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 40 designated tribe. Full Bench lays down that in that context the process of verification has to be broad-based. A claim can be allowed only where the Authority is satisfied about the genuineness and the correctness of the claim on the basis of the entire evidence on the record. The applicant has to discharge the burden of establishing his or her caste claim under Section 8 of the 2001 Act. Whether the burden has been discharged is for the Competent Authority/Scrutiny Committee to decide on the facts of each case. Where a person has some documents in his or her favour and/or partially satisfies the crucial affinity test, the question as to whether certification should be granted would depend upon the overall view which is formed by the Competent Authority in the first instance and by the Scrutiny Committee subsequently on the preponderating weight of the evidence. The nature of the documents that have been produced, the genuineness and authenticity of the documentary evidence and the weight to be ascribed to the documents produced, are matters which must be decided by the authority concerned.
Hon'ble Full Bench clarifies that the function of the Competent ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 41 Authority is not ministerial but is a vital step in the verification of tribe claims. The Competent Authority must be provided with a sufficient infrastructure to process and verify the claims. The State Government was directed to issue necessary administrative directions providing for infrastructure, including expert assistance and a Vigilance Cell to assist the Competent Authorities to discharge their duties within a period of two months. The material gathered by the Competent Authority under Rule 4 is to be transmitted by the Competent Authority to the Scrutiny Committee when an application is made to the Scrutiny Committee for the grant of a validity certificate. Full Bench clarified that it issued these directions in order to ensure that the process of issuing caste certificates by the Competent Authorities is not reduced to a mechanical exercise since both the 2001 Act and the 2003 Rules require the satisfaction of the Competent Authority in regard to the correctness of the claim.
Thus, the Full Bench judgment throws light on legal status of Scrutiny Committee and affirms that approach of said committee can not be mechanical but it has to be like that of any quasi-
::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 42judicial forum. It is therefore obvious that it has to record reasons also for whatever satisfaction it reaches. Hence, Maharashtra Adivasi Thakur Jamat Seva Mandal vs. State of Maharashtra (supra), relied upon by Advocate Haq need not be separately considered. Express use of word "order" and requirement to pass an order while invalidating a caste claim or canceling and confiscating caste certificate and its absence in Section 6 or Rule 12 when validity certificate is to be granted, does not lead to any other result. We are elaborating further on this aspect little later.
25. It will also be proper to appreciate how 2001 Act has been understood by this Court. AIR 2005 Bom. 1 - Sujit Vasant Patil v. State of Maharashtra is the Full Bench of this Court on 2001 Act as also Municipalities Act. Section 7, Section 10(4) of 2001 Act are incorporating provisions for cancellation of election of person who has been elected against a reserved seat either on Municipal Council or on Panchayat on his caste certificate being found invalid by Scrutiny Committee - Section 16(1C) (as ::: Downloaded on - 09/06/2013 18:39:35 ::: wp6131.11 43 inserted by Amendment Act 11 of 2002 in Municipalities Act) is considered and it is held that Act 11 of 2002 was enacted to give effect to provisions of 2001 Act by amending local self-
Government Acts. No repugnance in provisions of two Acts was found. Full Bench has also declared that provisions of 2001 Act are not violative of Artical 243-ZG of the Constitution on ground that its Section 10(4) empowers the Scrutiny Committee to set aside the election of candidate who has been elected against reserved seat on local self-Government authority as caste certificate on basis of which he contested election from reserved constituency is invalid. It is held that there is no question of the election of that candidate being set aside by the Scrutiny Committee. The job of the Scrutiny Committee is of either issuing the final caste certificate (validity) or refusing to do so.
If the Scrutiny Committee refuses to issue a final caste certificate, then the caste certificate issued by the competent authority ceases to exist. With the result, there is no caste certificate filed at scrutiny of the nomination papers and, therefore, the returned candidate loses qualification to contest the seat and, has to ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 44 vacate his seat. In view of this scheme of the 2001 Act, the Full Bench states that even in the absence of sub-section (4) of Section 10, the consequences in law of the Scrutiny Committee refusing to issue valid caste certificate would be vacation of seat by the elected candidate. Therefore, there is no question of there being any conflict with the provisions of Artical 243-ZG. So far as the competence of the State Legislature to make such provisions is concerned, the State Legislature gets competence to make such provisions because it has the competence to provide reservation of the seats. Full Bench also holds that provisions of 2001 Act like Section 11 are not invalid on the ground that it provides four penal consequences Division Bench of this Court in AIR 2005 Bom 229 Janardhan Vasant Yadav v. Vidyadhar Kanade has held that after orders of invalidation of Caste Certificate passed by Scrutiny Committee on ground of making false claim or declaration, its effect is that seat held by corporator on basis of caste claim shall be deemed to have been vacated due to Section 16(1C)(a) of the Mumbai Municipal Corporation Act, 1888. It also holds that -- "11. It is also material to note that a ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 45 finality has been provided to the order of the Scrutiny Committee under Section 7 (2) of the Caste Certificate Act and the only way to challenge the same is by way of filing a writ petition in the High Court. The Petitioner has undoubtedly not done that and, therefore, the order passed by the Scrutiny Committee is said to have attained the finality. The submission of Mr. Joshi in that behalf is a correct one." Thereafter, Full Bench of this Court in Ramesh Suresh Kamble Vs. State of Maharashtra through its Secretary, Social Welfare Department & ors. while considering same provisions and meaning of term "false claim or declaration" held that when caste certificate is invalidated by Caste Scrutiny Committee, it is not necessary for the Caste Scrutiny Committee to record specifically that the Caste Certificate has been obtained by the applicant by making false claim or declaration and the implicit inference is that such certificate has been obtained by making false claim or declaration. Upon invalidation and cancellation of Caste Certificate by the Scrutiny Committee, such person incurs disqualification automatically. In 2008(2) Mah.L.J. 553 = 2008 (1) LJSOFT 29- Shivling s/o Umrao Jadhav Vs. State of ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 46 Maharashtra & ors. Division Bench of this Court has held that jurisdiction to verify the caste certificate and enquire into the caste claim is conferred on the Scrutiny Committees constituted under the statutory provisions of the Act 23 of 2001. Collector is not empowered to exercise powers u/s 16 of BVP Act to decide the verification of the caste certificate and disqualify an elected person on the ground that the caste certificates were forged and bogus or on the ground of invalidity of the caste claim. Therefore Collector's order was quashed and set aside and the Collector was directed to refer the caste certificates of petitioners to the concerned Caste Certificates Scrutiny Committee.
26. These judgments, therefore, show exclusive jurisdiction with Scrutiny committee in the matter of caste disputes and also effect of invalidation of such caste certificates Advocate Bhangde has contended that when Scrutiny Committee grants validity, it is not required to pass an order and hence, Section 7(2) of 2001 Act is not attracted at all. We will examine this contention little later. However, Section 7(2) while giving finality to the orders of the Scrutiny Committee passed under the ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 47 Act, emphatically states that said order "shall not be challenged before any authority or court except the High Court under Article 226 of the Constitution of India." Bar is in negative language.
State of Kerala v. M/s. N. Ramaswami Iyer and Sons (supra) shows that even if the jurisdiction of the civil court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine those cases. This does not mean that Scrutiny Committee lacks power to correct such error. No doubt disregarding of caste certificate by High Court in an Election Petition has been upheld by Hon'ble Apex Court in "Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju". But its following findings in paragraph 4 are sufficient to distinguish:--
"Though, he faintly raised the contention that the issue of the certificate under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993, was conclusive and binding on the proceedings under the Representation of the People Act, 1951, he ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 48 did not seriously pursue that contention, obviously because of the fact that the certificate issued under that Act served a different purpose and could not stand in the way of an election petition filed under the Representation of the People Act, 1951 being tried in accordance with law by the High Court." This judgment is also on A.P. (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificate Act (16 of 1993).
In paragraph 18 Hon'ble Apex Court notices thus :-- "18. As against the admissions contained in Exhibits A2 to A11 and the evidence furnished by the other documents produced on behalf of the election petitioner, no positive evidence could be adduced by the appellant to show that he belonged to the Konda Dora Tribe. He relied on a caste certificate issued to him under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificate Act, 1993 in support of his claim. The trial Judge found that there was no due enquiry on the application of the appellant for the issue of a caste certificate as prescribed under this Act, and the certificate was issued to him based on a recommendation made the same day as the date of the ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 49 application, by the concerned authority. On an appreciation of the evidence of CW-1 in the light of Ex. C.1 to C.10 the trial Judge found that even the application for issuance of the certificate was filled up by the official concerned after obtaining the signature of the applicant therein, the appellant, in a blank form and the certificate was issued without following the proper procedure. CW-
1 in fact confessed in the court that the certificate was issued because he was told that in view of the decision in E.P. 13 of 1983 he was bound to issue the certificate asked for by the appellant. On going through the evidence of CW-1 and on scrutinizing Exhibits C1 to C10 and the reasoning adopted by the trial Judge, we are satisfied that the trial Judge was fully justified in discarding the caste certificate relied on by the appellant." Thus, the High Court trying election petition found that said caste certificate was not issued in compliance with provisions of said A.P. Act and in this situation, High Court rightly discarded it. High Court or Hon'ble Apex Court were not required find out whether said error in procedure could have been rectified by the Scrutiny Committee or then the Caste Certificate could have been re-scrutinized by ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 50 that committee under scheme of A.P. Act. This judgment does not show that Scrutiny Committee functioning under 2001 Act in Maharashtra can not take cognizance of such errors or exercise jurisdiction under Section 7(1) of that Act.
27. Language of Section 7(2) indicating that order of Scrutiny committee passed "under this Act" can be questioned only before the High Court under Artical 226 of the Constitution is itself unique and owes its origin to basic judgment of Hon'ble Apex Court in Kumari Madhuri Patil and anr. vs. Additional Commissioner, Tribal Development and ors., (supra). Sometimes, effort of legislature has been to provide direct challenge to Hon'ble Apex Court by avoiding High Courts as in the case of Administrative Tribunals Act, 1985. Here, Hon'ble Apex Court while issuing directions in quasi-legislative process, prescribed direct writ petition before the High Court and its disposal in time bound manner. Relevant directions are :--
"11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Artical 226 of the Constitution.::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 51
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition / miscellaneous petition / matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Artical 136."
Direction no. 13 has been partially modified by larger bench in Dayaram v. Sudhir Batham (supra). The statutory right of intra-court appeal is recognized and restored. But then that development is not relevant here. When scheme of Section 7(2) of 2001 Act is viewed in this light, the intention of State Legislature to implement these directions in letter and spirit is perceived. Section 7(2) is not confined to order of cancellation or confiscation passed under Section 7(1). Finality is given to all orders of the Scrutiny Committee and express mention that High Court under Artical 226 is the only forum to assail it and also unequivocal denial of any other Court or Authority as forum to challenge it, leaves no manner of doubt of an intention to abide ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 52 by said direction No.13. Later Constitution Bench of Hon'ble . lay Apex Court in AIR 1969 SC 78 - Dhulabhai v. State of M.P down 7 principles regarding exclusion of jurisdiction of Civil Court and principle 2 therein is decisive here. It reads :-
"(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."
Finality given to any order of the Scrutiny Committee "under this Act" and express mention of High Court and also ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 53 Artical 226 as the only forum/way to assail it and also unequivocal denial of any other Court or Authority as forum therefor, all highlight the intention to oust the jurisdiction of Civil Court. The reason is to avoid delays normally associated with civil litigation. Intention of State Legislature behind inserting directions 11 to 13 in Section 7(2) deserves primacy and paramount importance. We, therefore, can not accept the submissions of learned senior advocate and find that challenge to order of Scrutiny Committee is not open and possible in election petition. Paragraph 32 in State of Maharashtra v. Ravi Prakash Babulalsing Parmar (supra) shows the reliance placed on Gayatrilaxmi Bapurao Nagpure v. State of Maharashtra and Others [(1996) 3 SCC 685] wherein Hon'ble Apex Court referring to Madhuri Patil (supra) on the fact situation obtaining therein held:
17. Applying the above test to the facts of the present case, we are satisfied that the Committee failed to consider all the relevant materials placed before it and did not apply its mind to an important document "Sl.
No. 9" which led the Committee ultimately to record a ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 54 finding against the appellant. By a wrongful denial of the caste certificate to the genuine candidate, he/she will be deprived of the privileges conferred upon him/her by the Constitution. Therefore greater care must be taken before granting or rejecting any claim for caste certificate.
18. The High Court without appreciating the probative value of the documents placed before it has dismissed the writ petition filed by the appellant by simply accepting the conclusions reached by the second respondent Committee. Undoubtedly, in cases of this type, the burden heavily lies on the applicant who seeks such a certificate. That does not mean that the authorities have no role to play in finding out the correctness or otherwise of the claim for issue of a caste certificate. We are of the view that the authorities concerned must also play a role in assisting the Committee to arrive at a correct decision.
In this case, except the documents produced by the appellant, nothing has been produced by the authorities concerned to arrive at a different conclusion".
After taking note of these observations, in paragraph 33 in Ravi B. Parmar (supra), the Hon'ble Apex Court has ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 55 recorded its conclusion which is important for present purposes:--
"33. The said decision, therefore, is also an authority for the proposition that the Committee can go into the question as to whether a caste certificate has rightly been issued or not. The authorities concerned were also found to have some role to play in finding out the correctness or otherwise of the claim for issue of a caste certificate."
State of Kerala v. M/s. N. Ramaswami Iyer and Sons, (supra) which holds that even when its jurisdiction is excluded, civil court can intervene where provisions of law are not complied with or statutory tribunal has not acted in conformity with fundamental principles of judicial procedure: is not relevant in the background of above direction no. 13 & Section 7(2) of 2001 Act as construed by us.
28. We have already pointed out the views of Hon'ble Apex Court in State of Maharashtra v. Ravi Prakash Babulalsing Parmar (supra) and Full Bench of this Court in Shilpa Vishnu ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 56 Thakur vs. State of Maharashtra through its Secretary, Tribal Development Department & ors. (supra). Obligations on Scrutiny Committees and mode/manner of its discharge are thus already settled. Section 6(4) of 2001 Act envisages framing of Rules for proper discharge thereof. Contentions that Section 6(2) & (3) contemplate issuance of validity certificate and these provisions or Section 6(4) do not employ word "order" or in Section 7(1), passing of an "order" is warranted only while canceling the validity granted or refusing validity and Section 7(2) refers only to this "order" and bar of jurisdiction is not attracted when validity granted is to be assailed are all therefore misconceived.
If Section 6(4) of 2001 Act is construed in this fashion, then the Scrutiny Committee is not expected to adhere to any time limit, if it decides to reject caste claim. One may also, in such a situation urge that Scrutiny Committee should not follow the procedure prescribed by Rules when it is not granting validity.
Whether an argument that Rules can not prescribe procedure for verification when claim is to be rejected, is possible? Whether a contention that Rules permit laying down of a procedure only ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 57 when under Section 7(1) certificate is to be canceled can be advanced ? In none of the writ petitions, there is either a prayer or an argument by anybody to declare any statutory provision bad on any count. The Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003 ie 2003 Rules are framed under Section 18(1) of 2001 Act.
This Act in Section 2(i) defines phrase "prescribed" to mean as prescribed by Rules framed by the Government under it. Rule 12 of 2003 Rules prescribe procedure to be followed by Scrutiny Committee. Section 2(a) of 2001 Act defines Caste Certificate as one issued by the competent authority, Section 2(b) defines "Competent Authority" while Section 4 regulates issuance thereof. Term "validity certificate" is defined in Rule 2(h). Rule 3 prescribe procedure for obtaining scheduled tribe certificate while Rule 4 gives procedure to be followed by the Competent Authority for its grant or for rejection of an application therefor.
Rule 7(1) mandates that Scrutiny committee has to inquire into a complaint or allegation that a person to whom scheduled tribe certificate is issued, is not belonging to that tribe. Rule 7(2) ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 58 requires completion of such inquiry within 6 months and communication of its decision to Competent Authority issuing the said Scheduled Tribe certificate for taking suitable action against the applicant. Such decision also needs to be sent to the Divisional Commissioner for initiating necessary action against the issuing officer as per the disciplinary rules Rule 8 enables a person whose application for grant of scheduled tribe certificate is rejected by Competent Authority to file appeal to Appellate Authority. Rule 9, 10 & 11 deal with procedural aspects like meeting, quorum of Scheduled Tribe Certificate Scrutiny committee, constitution of vigilance cell to assist the said Committee and procedure for its verification. Rule 12 dealing with procedure to be followed by Scrutiny Committee does not use words "Scheduled Tribe" or then "Scheduled Tribe Certificate" till its sub-rule (9). Form G in which validity certificate is to be issued shows that it is only in relation to scheduled tribe. Rule 13 stipulates procedure for filing a complaint by the concerned Scrutiny Committee against an officer who has issued a "tribe certificate". Rule 14 permits grant ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 59 of certified copies of the decision of Scrutiny Committee to any person other than a candidate ie certificate holder. There are no other Rules in the field. Thus no separate Rules are framed under Section 7(1) for cancellation of caste certificate. 2001 Act does not recognize any certificate as "validity certificate"
separately. Rule 2(h) above defines it to mean a certificate issued by the Scheduled Tribe Certificate Scrutiny Committee validating the Scheduled Tribe certificate issued by the Competent Authority. Here, in present facts Syed Mujahid Iqbal does not have any such tribe certificate or validity as he is not belonging to any scheduled tribe. So exercise of its power by the Scrutiny Committee under Section 7(1) of 2001 Act is only in relation to Caste certificate and not validity certificate. Definition of Caste Certificate in Section 2(a) includes OBC certificate and certificate issued to Syed Mujahid Iqbal also. However, here Mohd. Sharique ur Rehman as also Syed Mujahid Iqbal are having caste certificate as also validity certificates showing that they belong to Mujawar other backward caste. We only need to observe that in the scheme of 2001 Act, grant of validity to Syed ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 60 Mujahid Iqbal does not estop the Scrutiny Committee and it is competent to exercise its powers under Section 7(1) to find out whether Caste Certificate issued by the Competent Authority needs cancellation or confiscation. Whether in present facts, such a case is made out or not is all together an independent issue which may also necessitate inquiry into disputed facts. That inquiry is not feasible in writ petition and Scrutiny Committee statutorily empowered has already issued show cause notice to Syed Mujahid Iqbal. Hence, at least at this stage and in present matter, it is not necessary to delve more on this aspect. When we consider the scheme of Section 6 or Section 7 and Rule 12, we find that there is nothing in it which absolves Scrutiny Committee of its obligation to apply mind before deciding to grant validity. The procedure prescribed therein is not contingent upon its outcome or final decision of Scrutiny Committee. Decision whether to issue validity or to cancel/confiscate the Caste Certificate issued by Competent Authority is to be reached in inquiry. Admittedly, the Scrutiny Committee consists of more than one member and such ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 61 satisfaction or decision therefore can not be parole. Even if decision to grant validity is to be taken at any stage, it has to be an informed decision reached as a result of joint application of mind by such members Such joint application of mind has to be on the strength of legal evidence produced and in accordance with or after compliance with legal provisions. Availability of relevant material about caste/tribe claim and compliance with legal requirements will be a finding constituting a reason either to grant or reject validity. Such an exercise will therefore form part of records of Scrutiny Committee. This decision will be an order recording satisfaction of the Scrutiny Committee to adopt a particular course of action. As it is joint act of two or more individuals, necessarily it will manifest itself in the shape of some writing which would constitute a decision or order. If decision is to grant validity, reasons in support of such grant need not be communicated as person receiving validity is not aggrieved by its grant. However as Section 7(1) enables any other person to challenge very issuance of Caste Certificate, this satisfaction will be an order then becoming relevant for the ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 62 purposes of Section 7(2) of 2001 Act. We, therefore, find that the Scrutiny Committee is obliged to pass an order or record reasons even while granting validity to the Caste Certificate holder. We are not required to add any words or read any words in any statutory provision to reach this conclusion. Section 6(2) shows that person desirous of obtaining validity may apply to Scrutiny Committee for verification and issue of validity certificate. Section 6(3) is similar mechanism for Employers, Local bodies, Societies or Governments. Section 6(4) also use words "verification" and "grant" of validity certificate. These provisions nowhere expressly stipulate passing of "orders" while granting validity certificate. Section 7(1) shows power suo motu or otherwise with the Scrutiny Committee to call for records and to hold enquiry into correctness to find out whether any Caste Certificate was obtained fraudulently. Word "order" is used here to state that Scrutiny Committee can by order cancel and confiscate the Caste Certificate. Section 7(2) again employs word "order" to encompass and govern all orders passed "under this Act". Rules 12(7) & 9(a) use word "satisfied" and empowers ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 63 Scrutiny Committee to issue validity certificate if it is so satisfied.
Rule 9(b) obliges it to pass an "order" only when it is not satisfied with the genuineness of the caste claim. This is not sufficient to hold that act of granting validity certificate can not be construed as an "order" at all. Procedure stipulated in Ku.
Madhuri Patil vs. State of Maharashtra (supra) also shows that such grant of validity is subject to further inquiry by Scrutiny Committee. As per direction no. 6 therein, a public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence is to be given to him. Here an inquiry is provided in Section 7(1) of 2001 Act.
Under Rule 4 (9), a competent authority has to extend opportunity to applicant or any other person concerned when it finds need of further inquiry. Scheme in Rule 12 also shows requirement of inviting objections to vigilance cell or further proof from applicant only when Scrutiny Committee is not "satisfied" and therefore decides not to act on vigilance report or only upon material furnished or by applicant with caste claim. At ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 64 that stage, under Rule 12 (8), it is mandatory to serve copy of notice upon head of the department. These provisions in 2003 Rules therefore show a possibility of "lis" at the respective stages either before the Competent Authority or Scrutiny Committee.
Use of the words relied upon by Advocate Bhangde in Sections 6 & 7 or in Sub-rules of Rule 12 does not militate with and is not sufficient to defeat the inherent obligation on adjudicatory bodies in such a situation and or to affect the legislative mandate in Section 7(2) of 2001 Act. On the contrary when all these words are understood consistently with the scheme of the 2001 Act, need of application of mind and hence of recording of reasons at each stage or passing of orders by the Scrutiny Committee becomes evident and is essential. Its communication may not be necessary in certain situations. In view of this conclusion, law explained by Hon'ble Apex Court in Supreme Paper Mills Ltd. v. Asstt. Commr ., Commercial Taxes, Calcutta (supra) is not applicable here. Thus bar under Section 7(2) is attracted even when a decision of Scrutiny Committee to grant validity is assailed on the ground that basic caste certificate from ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 65 competent authority is procured by playing fraud and producing certified copies of tampered original records. At least in present facts, the Scrutiny Committee has not carried out any vigilance cell inquiry or other independent verification and before this Court, has filed affidavit accepting to look into the complaint dated 5.12.2011 by Mohd. Sharique ur Rehman to it. It has also issued a show cause notice to Syed Mujahid Iqbal under Section 7(1) of 2001 Act. The perusal of rejoinder dated 14.3.2012 filed by Mohd. Sharique ur Rehman reveals that Scrutiny Committee had on 22.1.2007 passed an order and looked into dispute raised by one Saiyad Rajique Saiyad Salar before deciding to grant validity to Caste Certificate of Mohd. Sharique ur Rehman.
However, no such order or document evidencing application of mind qua claim of Syed Mujahid Iqbal is disclosed by Scrutiny Committee or Syed Mujahid Iqbal. In reply affidavit, Scrutiny Committee has explained how it did not treat some documents produced by Syed Mujahid Iqbal as relevant and accepted few other documents to satisfy itself about the correctness of his caste claim. It has also asserted that only if documentary ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 66 evidence is not found sufficient, papers are forwarded to vigilance cell and not otherwise. As it accepted the documents to be sufficient and in absence of any objection to caste claim of Syed Mujahid Iqbal before it, it proceeded to grant validity.
Judgment of this Court in Mahesh Pralhadrao Lad vs. State of Maharashtra (supra), paragraph 9 supports this course of action.
But then Committee has to show that all its members were satisfied that there was no need to call police vigilance cell report. Here, Scrutiny Committee has not even whispered that any order was passed by it at that juncture or then such satisfaction is recorded in writing. It has admitted in reply that the police vigilance inquiry was felt not necessary. Reply also manifests that then it was not aware of the alleged interpolations in originals. Hence, no order as envisaged under Section 7(2) of 2001 Act exists in present matter. When Advocate Bhangde for Syed Mujahid Iqbal is urging that when validity is to be granted, Scrutiny Committee is not expected to pass any separate order, we need not delve more on this aspect in present facts. The certificate validating Caste Certificate issued by Scrutiny ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 67 Committee needs to be viewed as its order. In fact in paragraphs 1 & 12 of his preliminary objections filed on 29.3.2012 before the Scrutiny Committee, Syed Mujahid Iqbal has referred to validity granted to him as an "order" to press bar in view of Section 7(2) of 2001 Act. Such a plea by him is not decisive but then the discussions above show that any order of Scrutiny Committee is binding on District Court trying an election petition and it must be assailed in mode and manner provided by Section 7(2) i.e. before this Court under Artical 226. When grant of basic document ie Caste Certificate is alleged to be outcome of a fraud, as disputed questions arise, remedy under Section 7(1) is the only and most appropriate one. Judgment of Hon'ble Apex Court in Bombay Metropolitan Region Development Authority v.
Gokak Patel Volkart Ltd. (supra) shows that when an alternate remedy was already resorted to, the High Court should not have entertained a writ petition. Here, remedy under Section 7(1) is available to Mohd. Sharique ur Rehman and that inquiry is already going on.
::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 6829. Other contention is that if Writ Petition No. 6131 of 2011 is allowed, Respondent No.7 therein viz. Syed Mujahid Iqbal stands removed and its effect is interference with election.
Statutory scheme and automatic or deemed vacation of his seat by elected member consequential to cancellation of caste certificate is already noted by us above while considering Sujit Vasant Patil v. State of Maharashtra and Janardhan Vasant Yadav v. Vidyadhar Kanade (both supra). The effect test as urged is therefore not very relevant here. Shyam Sunder Sarma v.
Pannalal Jaiswal, Ratansingh v. Vijayasingh and ors., (supra) is the last judgment used by Advocate Bhangde to substantiate his contention. There the order refusing to condone the delay in filing first appeal passed on an application for that purpose and presented with appeal is found to have the effect of dismissal of appeal and therefore remedy of filing Second Appeal under Section 100 CPC is held available. Situation at hand is entirely different. This Court can not resolve disputed questions of facts and Scrutiny Committee has already embarked on that inquiry.
In case, as a result thereof, the Scrutiny Committee cancells and ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 69 confiscates the Caste Certificate used by Syed Mujahid Iqbal, consequences as intended by Legislature and provided for in Section 10(4) of the 2001 Act may ensue. If order of Scrutiny Committee giving effect to this provision or otherwise can be a subject matter of challenge before High Court under Artical 226, in appropriate circumstances, High Court can itself direct its implementation. The statutory scheme with which we are concerned show this argument of "effect test" misconceived. We therefore find objection as raised unsustainable.
30. As an allegedly forged Caste Certificate is used against Petitioner Mohd. Sharique ur Rehman, it can not be said that remedy under Section 7(1) of 2001 Act can not be resorted to by him. His undertaking contained in Rejoinder dated 14.03.2012 in Writ Petition No. 6131 of 2011 is to give up challenge to decision of Scrutiny Committee in Election Petition No.5 of 2011 and to raise it only in his Writ Petition No. 6131 of 2011. Syed Mujahid Iqbal who is Respondent No.7 in said Writ Petition has contended that challenge to decision of Scrutiny ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 70 Committee must be only in Election Petition No.5 of 2011. As we have already found that said challenge is not open in election petition, the undertaking is superfluous. In S.J.S. Enterprises (P) Ltd. vs. State of Bihar (supra), Hon'ble Apex Court has held that where writ petition before the High Court was otherwise maintainable, suppression of filing of a civil suit which was withdrawn within two weeks of its filing was not of a material fact warranting denial of relief in writ petition. This precedent is followed by this Court in Ghanshyam s/o late Gopaldas Mohota vs. The Corporation of City of Nagpur & anr. (supra). Here, except for giving an undertaking, Mohd. Sharique ur Rehman has not actually amended his election petition to withdraw that claim. In law, after furnishing such undertaking to this Court and prosecuting the matter further on its basis, Mohd. Sharique ur Rehman can not press that challenge in election petition. In any case, in view of our finding noted above, this controversy is rendered infructuous. For same reasons, contention of Syed Mujahid Iqbal that he is denied opportunity to question validity given to Mohd. Sharique ur Rehman in election petition 5 of ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 71 2011 due to such undertaking does not hold any water. His contention about same procedure being followed or absence of vigilance cell investigation while granting validity to Mohd.
Sharique ur Rehman by Scrutiny Committee is also not relevant before us at this stage.
31. Reply affidavit of Scrutiny Committee in Writ Petition No. 6131 of 2011 and stand of Syed Mujahid Iqbal shows absence of any separate order which can be viewed as impugned order and admittedly, there is no vigilance cell inquiry. Affidavit filed in reply on behalf of Respondent No.6 - Police Station officer shows registration of crime number 130/2011 against Syed Mujahid Iqbal under Section 420, 467, 468, 471, 199 & 200 r/w Section 34 IPC on 11.12.2011. Result of investigation is stated to be manipulations of original documents and addition of word "Mujawar" in Kotwal book of the years 1909, 1931 & 1933.
This material is being looked into by Scrutiny Committee and Syed Mujahid Iqbal may have several defences in the matter. It raises numerous disputed questions. We can not and are not ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 72 therefore recording any finding in regard to these documents so as to avoid prejudice to any of the parties before us. Scrutiny Committee has relied on these 3 old documents to satisfy itself to grant validity to Syed Mujahid Iqbal. Hence, in changed situation after getting complaint of alleged interpolations and fraud, it is duty bound to find out whether any fraud was practiced on it and whether any police vigilance cell inquiry is necessary.
Section 7(1) of 2001 Act confers that jurisdiction upon it. In this situation, we do not find it necessary to rely upon the final judgment dated 04.05.2012 or interim orders at Bombay in Writ Petition No. 853 of 2012 and other connected matters. Here as proper inquiry needs to be conducted, there is no point in adjourning the present challenge for period of ten weeks. The disputed questions arising in Writ Petition No. 6131 of 2011 can be gone into in the proceedings under Section 7(1) initiated vide show cause notice dated 21.03.2012. The show cause notice has been issued belatedly only after this Court took cognizance of Writ Petition No. 6131 of 2011. We are, therefore, not able to hold that Mohd. Sharique ur Rehman is not the right person ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 73 before right Court in right action. As held in Rafique Bibi v. Sayed Waliuddin (supra), the Court can invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. These ingredients are satisfied in Writ Petition No. 6131 of 2011.
32. Challenges by Syed Mujahid Iqbal in Writ Petition No. 1674 of 2012 now need consideration. Basic challenge stems from the letter dated 16.03.2012 sent by office of the Government Pleader at Nagpur and an indication of possible CID inquriy. Syed Mujahid Iqbal claims that he got knowledge thereof later on and according to him, show cause notice dated 16.3.2012 is due to panic it caused. This letter is sent by Assistant Commissioner, Social Welfare, Akola to the Collector, Akola. It is on the subject of submission of their say by the district level scrutiny committee members and Writ Petition No. 6131 of 2011. It mentions telephonic message received at 3 PM on 14.03.2012 from the office of Superintendent of Government Pleader's office. It discloses filing of reply affidavit in said Writ ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 74 Petition No. by member secretary on behalf of Scrutiny Committee. Relying upon telephonic communication, it is mentioned that High Court has asked as to why CID inquiry should not be ordered against member, member-secretary and Chairman of District Level Committee. As affidavit on behalf of Committee was to be filed before 20.03.2012, same is reported to have been presented in High Court through fax. Copy of this letter appears to be sent to committee members also. Show cause notice is issued on 21.03.2012 to Syed Mujahid Iqbal and it is under Section 7 of the 2001 Act. It is with reference to complaint dated 30.11.2011 by one Saiyad Ilias Saiyad Usman, inquiry report dated 30.11.2011 by Tahasildar, Patur and FIR 130/2012 dated 1.12.2011 lodged by Naib Tahasildar, Patur. It is with reference to contents of kotwal books of 4 years ie. 1909, 1927, 1931 and 1933 and facts which surfaced in inquiry. Syed Mujahid Iqbal has been called upon to show cause why the validity certificate should not be confiscated, cancelled, why his caste claim should not be invalidated and why action to register an offence under Section 11 of 2001 Act should not be taken ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 75 against him. Facts noted by us, at their face-value justify issuance of show cause notice and it at once dawns that show cause notice under Section 7(1) ought to have been issued much earlier. Our this observation, however, does not mean that we have endorsed any of the facts contained therein and it is open to parties to demonstrate that any of them do or do not exist.
The orders passed by this Court in Writ Petition No. 6131 of 2011 do not record any thing about the CID inquiry. This Court during hearing may have expressed some thing but ultimately, as it did not find it necessary, has not issued any direction to conduct CID inquiry. Not issuing such directions at that stage does not mean that even in future also this Court could not have ordered CID or any other inquiry. Hence, communication of such possibility by office of the Government Pleader to his clients as a caution in confidence on telephone as mentioned in letter dated 16.3.2012 can not be taken as something wrong. Division Bench judgment of this Court in Adarsha Toddy Kamgar vs. State of Maharashtra (supra), shows that an interim prayer to continue the licenses under Rule 30(1) of Maharashtra Country Liquor ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 76 Rules, 1973, was granted and confirmed. It was never varied and still the government officers did nothing to renew the license or to issue directions to enable petitioners to continue the business. Hence, they complained of contempt. In defence, the officers relied upon the letter written by AGP containing reference to some oral exchange between him and the Court and informing authorities that it was not necessary for them to take any action in relation to the licenses. In effect, he communicated absence of any need to implement the interim orders.
Observations of this Court in paragraph 14 emphasized need to observe rules of procedure and to communicate precise orders of court. It has also found position of AGP more responsible in such matters. Division Bench observes that written orders of Court can not be interpreted in the light of parole discussion and a written order can be varied or modified only by another written order of the Court. There can not be any debate in this respect.
However here, the telephonic message as per letter dated 16.3.2012 does not in any way report varying of any earlier court orders in Writ Petition No. 6131/2011. At the most it ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 77 accelerated the steps, which even otherwise, were due and inevitable. Obligation on Scrutiny committee to act under Section 7(1) of 2001 Act is beyond any doubt and it has, for reasons found relevant by it, acted in furtherance thereof. We, therefore do not find any substance in the argument that only because of said letter, show cause notice came to be issued.
There is other material as referred to in show cause, to support it. Whether facts about CID inquiry mentioned therein are correct or not is therefore not determinative in present matter.
However, this Court has on 22.03.2012 merely noted fact of issuance of said show cause notice a day earlier, directed Scrutiny Committee to take appropriate action on it within 4 weeks and adjourned matter for said period. This Court therefore had not at-least at that juncture either approved or condemned any thing. Even today, this Court is only considering act of issuance of a show cause notice and touch stones for considerations at this stage and later while appreciating challenge to final action in pursuance thereof, are entirely different. It can not be said that this Court has in any way ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 78 eclipsed the defences open to Syed Mujahid Iqbal while opposing that show cause notice. We have permitted the show cause proceedings to continue in accordance with law without jeopardizing any of his defences Hon'ble Apex Court in Maharashtra State Textile Corporation Ltd. v. Official Liquidator (supra) relied upon by Advocate Bhangde also in somewhat similar background holds accordingly. Bias on part of Scrutiny Committee can not be inferred only because it discharged statutory duty by issuing a show cause.
33. Further course of events after 22.03.2012 shows that Syed Mujahid Iqbal appeared before the Scrutiny Committee on 29.3 2012 and filed preliminary objections First objection is provision of law under which it is issued, is not disclosed. It thus overlooks the very heading of the notice. It is contended that Section 7(1) can not be invoked as inquiry into validity is already over and validity stands granted which is final and assailable under Artical 226 only. Validity is accepted to be an order under Act for the purposes of Section 7(2). The complaint of Saiyad ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 79 Ilias is labeled as false. Non-receipt of order asking Tahasildar to inquire, holding of inquiry by unauthorised person ie Naib-
Tahsildar is also pleaded. It is contended that such inquiry is illegal and without jurisdiction. Filing of FIR is denied and its cognizance directly by Police is urged to be contrary to Section 11(2) of 2001 Act. As Writ Petition No. 6131 of 2011 filed by Mohd. Sharique ur Rehman is pending, Scrutiny Committee is asked not to interfere in proceedings in High Court. Pendency of Election Petition No.5 of 2011 and involvement of same issue therein is also pressed into service for seeking an order to drop the show cause. Naib Tahsildar who submitted the report is not an expert on tampering and hence, action on his report is alleged to be misconceived. Absence of report of handwriting expert and need to examine or cross-examine Saiyad Ilias, Tahsildar or Naib Tahsildar is also pointed out. Filing of police complaint and preparation of report within a day are due to political influence and without any opportunity to Syed Mujahid Iqbal. It is claimed that Syed Mujahid Iqbal has not submitted any false documents on record. The certified copies are claimed to be as ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 80 per original records and it is submitted that same Naib Tahsildar could have refused to issue certified copies if there were tampering on record on 5.10.2011. Syed Mujahid Iqbal has alleged collusion between Saiyad Ilias and Naib Tahsildar and given one incidence in support. He also claimed that as he was not involved with any forgery, he has sought discharge in criminal matter. Long litigation between the parties is also pointed out. Reply affidavit filed by Assistant Commissioner in Writ Petition No. 6131 of 2011 is pointed out with contention that said person is estopped from changing his stand.
Proceedings are stated to be not tenable due to Artical 243ZG as also Section 21 of Municipalities Act. There is no power to review with Scrutiny Committee and show cause issued is without just or sufficient material. Answer to some of these depend on ascertainment of facts and can not form valid preliminary objections before the Scrutiny Committee which has yet to look into alleged interpolations and effect thereof. Hence, while passing orders on it, the Scrutiny Committee has rightly restricted its consideration to jurisdictional facet and by relying ::: Downloaded on - 09/06/2013 18:39:36 ::: wp6131.11 81 upon Devendra Gurunath Khedgikar vs. The Scheduled Tribe Certificate Scrutiny Committee (supra), found with itself the power and jurisdiction to look into such grievances. It also found that prima facie, a fraud was played while obtaining the Caste Certificate. Thus initiation of show cause action is upheld.
If it finds that not calling for vigilance cell report was vitiated due to production of certified copies of interpolated documents and any fraud was played, it is competent to proceed further as per law. Though formation of a different opinion on same material is not permitted as per Devendra Gurunath Khedgikar vs. The Scheduled Tribe Certificate Scrutiny Committee (supra), when that material itself is later complained to be non-existent or incorrect, this discovery of tampering is a new material and Scrutiny Committee is duty bound and can under Section 7(1), take a suitable/other view on controversy only if findings reached as a result thereof, warrant it.
34. Syed Mujahid Iqbal, obviously not satisfied with this treatment moved another application for deciding the remaining ::: Downloaded on - 09/06/2013 18:39:37 ::: wp6131.11 82 objections and as its filing was not accepted on 31.03.2012, it was handed over in inward section. On 30.03.2012, Scrutiny committee sent copy of its order dated 29.03.2012 to Syed Mujahid Iqbal and giving reference of Writ Petition No. 6131 of 2011, called upon him to appear on 04.04.2012. On that date, Syed Mujahid Iqbal filed additional preliminary objection pointing out availability of division level Scrutiny Committee at Amraoti and contention was raised that district level committee was given limited function only in election process then in progress and it lacked powers under Section 11 to cancel or confiscate the Caste Certificate. The Committee rejected the same by observing that objection to jurisdiction is already rejected and all other objections deserved to be looked into later on. It therefore decided to inquire into facts to find out fraud or misrepresentation. Thus, by this order it made it clear that other objections are to be decided while passing final orders. Syed Mujahid Iqbal then pointed out his application dated 31.3.2012 given in inward section and sought orders on it. He affirms that it annoyed the Collector who then made some remarks about ::: Downloaded on - 09/06/2013 18:39:37 ::: wp6131.11 83 procedure in civil courts. Though these developments or remarks are not in dispute, there is nothing on record to enable us to perceive them as contempt. A responsible officer like Collector was most probably trying to comply with directions within 4 weeks as per orders of this Court dated 22.3.2012. Similarly, it can be said that Syed Mujahid Iqbal was attempting to delay that adjudication with a view to continue as long as possible as a Councillor. But we wish that making of such remarks was unnecessary and could have been prudently avoided. But then these developments also do not bring out any bias. Interest of Syed Mujahid Iqbal is adequately protected as all his objections are being looked into at final stage when an order to his prejudice may be passed, if facts then established so require.
Thus, there is no need to quash either the order dated 29.03.2012 or then dated 04.04.2012 or to transfer Section 7(1) proceedings to any other Scrutiny Committee. Statements made on affidavit in reply before this Court on behalf of Scrutiny Committee are only to justify decision to issue show cause notice and as per material then on record. It does not disclose a closed ::: Downloaded on - 09/06/2013 18:39:37 ::: wp6131.11 84 mind and opportunity to Syed Mujahid Iqbal before the said Scrutiny Committee is not rendered an empty formality.
Petitioner like Syed Mujahid Iqbal who pressed disputed facts which can be settled only after inquiry as preliminary objections and attempted to obtain order thereupon even before commencement of hearing on merits, can not raise such contentions. Taking overall view of the matter, conduct of Mohd.
Sharique ur Rehman in not circulating his Writ Petition No. 6131 of 2011 or participating in election and filing of election petition, not disclosing its filing in Writ Petition No. 6131 of 2011 can not be said to be grave enough or relevant to deny him the relief.
Even in absence of his grievance, Scrutiny Committee is competent to proceed with show cause notice dated 21.03.2012 and proceedings initiated by it. In this situation, CAW No.1066 of 2012 filed in Writ Petition No. 1634 of 2012 by Mohd.
Sharique ur Rehman for permission to intervene is rendered infructuous and is disposed of accordingly.
35. In the result orders of Scrutiny Committees dated ::: Downloaded on - 09/06/2013 18:39:37 ::: wp6131.11 85 29.03.2012 and 04.04.2012 and show cause notice dated 21.03.2012 issued by it are upheld. Preliminary Objections raised by Syed Mujahid Iqbal and not looked into by the Scrutiny Committee are still open and Scrutiny Committee to record findings on it while disposing of action under Section 7(1) of 2001 Act initiated by it as per show cause notice dated 21.3.2012. Looking to the nature of controversy, we direct Scrutiny Committee to complete those proceedings within period of three months from the date on which parties appear before it.
Parties are directed to appear before Scrutiny Committee on 25.06.2012, to aide by its further instructions and to cooperate in expeditious disposal of said proceedings. Prayers made by Mohd. Sharique ur Rehman in Writ Petition No. 6131 of 2011 necessitate an investigation into disputed facts and same is already undertaken by the Scrutiny Committee by issuing show cause to Respondent No.7 Syed Mujahid Iqbal therein. On 22.03.2012, this Court has already directed Scrutiny Committee to take appropriate action on it within 4 weeks. To-day, we have directed it to complete the said proceeding of show cause within ::: Downloaded on - 09/06/2013 18:39:37 ::: wp6131.11 86 3 months. Hence, no other orders need to be passed in Writ Petition No. 6131 of 2011. All contentions raised by Mohd.
Sharique ur Rehman are also open and be inquired into by the Scrutiny Committee. Both writ petitions are accordingly disposed of. CAW No.1066 of 2012 filed in Writ Petition No. 1634 of 2012 by Mohd. Sharique ur Rehman is disposed of as infructuous. Rule stands discharged in both the petitions accordingly with no orders as to costs.
JUDGE JUDGE
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joshi/dragon.
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